Eleventh Circuit Affirms Former Birmingham Mayor’s Federal Conviction But Doubts About the Constitutionality of the Honest Services Statute Remain

Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses, including mail and wire fraud, bribery, money laundering, and federal tax offenses.

To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.

Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.

In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official.”

Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit’s apparent decision to return to the pre-Skilling era in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as “honest services” fraud. As Justice Scalia himself recognized in Skilling, even with the majority’s pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.